Heard: April 10, 2017.
received and sworn to in the Woburn Division of the District
Court Department on February 27, 2013.
case was tried before Stacey Fortes-White, J.
L. Sheketoff for the defendant.
Kristen M. Hughes, Assistant District Attorney, for the
Present: Kafker, C.J., Milkey, & Desmond, JJ.
defendant, Richard S. Nelson, was convicted of operating a
motor vehicle while under the influence of intoxicating
liquor, third offense, G. L. c. 90, § 24(1) (a.) (1),
following a jury trial. On appeal, the defendant claims that
the trial judge erred by not excusing a juror for cause who
indicated that he was "a little" more likely to
believe the testimony of a police officer than that of other
witnesses, but agreed that he would be able to "keep an
open mind, " "listen to all of the facts and
evidence, " and "render a fair verdict."
Although the defendant eventually exhausted all of his
peremptory challenges, he did not use one of his
then-remaining peremptory challenges on this juror or ask for
additional peremptory challenges, and stated that he was
content with the jury on which the juror sat. We affirm,
concluding that the judge did not abuse her discretion. We
also provide some additional guidance regarding the follow-up
questioning of the challenged juror.
beginning of jury empanelment, the judge reminded the parties
that they each had two peremptory challenges and needed to
voice their objections to any jurors before the jury was
sworn. The judge then directed a series of questions to the
venire to probe their ability to be impartial. The judge
asked whether any juror would be "more inclined to
believe the testimony of a police officer over someone who is
not a police officer solely because that individual is a
police officer." Four jurors, including juror number
(no.) fourteen, raised their hands. During the questioning of
juror no. fourteen, the judge asked whether he would
"give greater weight to the testimony of a police
officer." Juror no. fourteen responded that he would,
"[b]y a little." The judge then interjected,
"[W]hat we're trying to get here is a fair and
impartial jury, sir. So we want to make sure that you have
the ability to keep an open mind and listen, " to which
juror no. fourteen responded, "Of course." The
judge then asked, "[A]re you saying that because
someone's a police officer you would be unable to do
that?" Juror no. fourteen stated, "No, but I feel
like police officers have power, so you've got to give at
least 51 percent that they might be telling -- they're
probably telling the truth. . . . Not 100 [percent], not even
close." Juror no. fourteen further explained that this
was "without knowing anything about the case." The
judge then asked juror no. fourteen whether he would "be
able to listen to all of the facts and evidence in the case
before [he would] be able to render a fair verdict."
Juror no. fourteen responded, "Right." The judge
further confirmed, "[Y]ou'd be able to do that,
" to which juror no. fourteen responded, "I think
so. Yes." Based on this exchange, the judge found that
juror no. fourteen could be fair and impartial and seated him
on the jury.
several jurors had been seated, the judge asked the parties
whether they wished to challenge any juror for cause. Defense
counsel challenged juror no. fourteen, pointing to his
"inclination ... to believe a police officer 51
percent." The judge stated that she was "satisfied
with [juror no. fourteen's] response, " and declined
to excuse him for cause. Defense counsel did not challenge
any other jurors for cause.
seven jurors had been seated, the judge asked whether either
side wished to exercise any peremptory challenges. Defense
counsel exercised a peremptory challenge to juror no. two,
who indicated that she had testified as a witness in a
domestic violence case. After juror no. two was replaced,
defense counsel exercised another peremptory challenge on
juror no. eleven, who had not indicated any responses to the
judge's questions and was not examined individually. When
the jury box again was full, the judge asked whether both
sides were content with the jury, and defense counsel
Sixth Amendment to the United States Constitution and art. 12
of the Massachusetts Declaration of Rights guarantee the
right of a criminal defendant to a trial by an impartial
jury. Commonwealthv.Andrade, 468
Mass. 543, 547 (2014). "A trial judge is accorded
considerable discretion in the jury selection process and
[her] finding that a juror stands indifferent will not be
disturbed except where juror prejudice is manifest."
Commonwealthv.Clark, 446 Mass.
620, 629-630 (2006). Reversal is warranted, however,
"where a 'judge refuses to excuse any juror who
should be excused for cause, and as a result the defendant
exhausts all peremptory challenges and is forced to accept a
juror whom he otherwise would properly have
challenged.'" Commonwealthv.Leahy, 445 Mass. 481, 497 (2005), quoting ...